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HomeMy WebLinkAbout99-2201 CivilC & J ENTERPRISES, ' Plaintiff · WALTER POLHEMUS ' and BONNIE POLHEMUS: t/aJd/b/a POLHEMUS & : ASSOCIATES, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-2201 CIVIL TERM IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' COUNTERCLAIM BEFORE HOFFER, P.J., and OLER, J. ORDER OF COURT AND NOW, this ~'"/~day of December, 1999, upon consideration of plaintiff's preliminary objections to defendants' counterclaim, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. BY THE COURT, Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff Vesley Oler, J~ - ' Michael W. Flannelly, Esq. 18 South George Street Suite 201 York, PA 17401 Attorney for Defendants C & J ENTERPRISES, Plaintiff V. ' WALTER POLHEMUS : and BONNIE POLHEMUS: t/a/d/b/a POLHEMUS & : ASSOCIATES, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-2201 CIVIL TERM IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' COUNTERCLAIM BEFORE HOFFER, P.J., and OLER, J. OPINION and ORDER OF COURT Oler, J., December 7, 1999. In this civil case, a printing company has sued two individuals for unjust enrichment and breach of contract, arising out of an arrangement whereby defendants allegedly engaged plaintiff to print certain materials and then failed to pay for the product. Defendants have filed a counterclaim for lost profits allegedly resulting from defects in the printing job performed by plaintiff. For disposition at this time are preliminary objections filed by plaintiff to defendants' counterclaim. The preliminary objections consist of a demurrer and a motion to strike, each premised upon an alleged absence of any basis for recovery for loss of anticipated profits upon the facts alleged. The matter was argued on August 11, 1999. For the reasons stated in this opinion, the preliminary objections will be denied. STATEMENT OF FACTS The facts alleged in plaintiff's complaint may be summarized as follows. From 1996 through 1998, defendants placed printing orders with plaintiff, plaintiff performed the work ordered, and plaintiff is owed a balance of $7,748.72 for the work. Defendants' counterclaim includes the following paragraphs: 17. Defendants spent approximately one year attempting to secure printing work from Bradley Academy which Defendant was finally given an opportunity to print for Bradley Academy in December of 1997. 18. Defendant entered into an oral agreement with Plaintiff to perform aspects of printing work on the Bradley Academy job. 19. Due to faulty workmanship on the part of Plaintiff, deadlines established by the Bradley Academy for Defendant for performance had expired. 20. Plaintiff assured Defendant that the final product was in acceptable form and could be delivered directly to the Bradley Academy. 21. The product that was delivered by Plaintiff to the Bradley Academy exhibited shoddy workmanship on the part of Plaintiff. 22. As a result of said shoddy workmanship, Bradley Academy refused to give any future work to the Defendant. 23. Defendant anticipated profits from its future contracts with Bradley Academy in the amount of $4,000.00 to $5,000.00 per year. An average account would stay with the contractor such as Defendant for seven to ten years. 2 Based upon the anticipated yearly profits and their expected duration, defendants requested damages in excess of $30,000.00. Plaintiff's preliminary objection in the nature of a demurrer contends that the counterclaim "fails to allege or aver any facts, which indicate that the loss of [claimed] profits is causally related to the allegedly defective work of the Plaintiff or that the damages claimed were reasonably foreseeable at the time of the agreement between the parties," that "[a]ny damages claimed for lost profits based on future business relationships not yet entered into are necessarily speculative and therefore not recoverable," and that "[t]he Counterclaim fails to set forth any legally cognizable basis upon which the relief sought could be granted." Plaintiff's preliminary objection in the form of a motion to strike argues that defendants' counterclaim "fail[s] to allege or aver any factual or legal basis for claiming damages for future lost profits based on anticipated business agreements not yet entered into by Defendants? Although styled "Preliminary Objections of Plaintiff to Defendants' Counterclaim," the portion of plaintiff's preliminary objections relating to a motion to strike also requests that the following paragraph in defendants' new matter be stricken: "Defendant anticipated profits from its future contracts with Bradley Academy in the amount of $4,000.00 to $5,000.00 per year. An average account would stay with the contractors such as Defendant for seven to ten years." For the reasons stated in this opinion with regard to the motion to strike the counterclaim, this pleading of a setoffwill also not be stricken. DISCUSSION Statement of law. In ruling upon a preliminary objection in the nature of a demurrer, the court "must accept as true all well-pled allegations and material facts averred in the complaint as well as inferences reasonably deducible therefrom and any doubt should be resolved in favor of overruling the demurrer." Tiedeman v. City of Philadelphia, 732 A.2d 696, 698 (Pa. Commonwealth Ct. 1999). "The question presented by a demurrer is whether, on the facts alleged, the law says with certainty that no recovery is possible." Feigley v. Department of Corrections, 731 A.2d 220, 222 n.5 (Pa. Commonwealth Ct. 1999). "Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt." Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). In addition, a motion to strike is not a substitute for a motion for a more specific complaint. Borough of New Cumberland v. Gates, 47 Cumberland L.J. 21 (1997). Finally, in a breach of contract action, "our courts have held that damages may be assessed for loss of profit where such loss was reasonably foreseeable to the parties at the time that the contract was entered and where those damages are capable of proof of reasonable certainty." General Dynafab, Inc. v. Chelsea Industries, Inc., 301 Pa. Super. 261,265,447 A.2d 958, 960 (1982). Application of law to facts. Given the general principle that lost profits may be recovered in a breach of contract action where they were foreseeable by the parties at the time the contract was formed, and the implication in the present 4 case that, at the time the contract was entered into, defendants were familiar with the nature of plaintiff's business and were aware of the intended use of the printed materials by plaintiff for a specific customer, the court is not in a position at this stage of the proceedings to dismiss defendants' counterclaim on the theory that, with certainty, no recovery is possible. For this reason, the following order will be entered: ORDER OF COURT AND NOW, this 7th day of December, 1999, upon consideration of plaintiff's preliminary objections to defendants' counterclaim, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. BY THE COURT, Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff Michael W. Flannelly, Esq. 18 South George Street Suite 201 York, PA 17401 Attorney for Defendants :rc s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 5